Opinion
No. CV 07-5012628
February 21, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS
I.
The defendants in this case have moved to dismiss this complaint for Declaratory Relief on grounds of improper service and forum non convenience.
Defendants claim that service of process was insufficient because the plaintiff failed to address service of process to the secretary of the various defendant corporations and instead simply made service on each corporation. It is clear that plaintiff served each defendant properly under Connecticut's longarm statute pursuant to Conn. Gen. Stat. § 33-929(g), which provides that when serving a foreign corporation subject to suit in Connecticut, service shall be addressed to the corporation at its principal office and that service addressed to the secretary of the corporation is unnecessary. In plaintiff's November 9, 2007 letter to the court, the plaintiff provides appropriate documentation of the fact that plaintiff served each defendant in accordance with Connecticut statutory law.
In Nieves v. Tri-State Construction Planners, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01-00176157 (February 1, 2001, D'Andrea, J.), where the defendant raised the issue that the plaintiff did not satisfy the service of process requirements of § 33-929 because service was not addressed to the defendant corporation's secretary, the court held that while subsection (b) of § 33-929 requires service to be addressed to the corporation's secretary under subsection (g) which was the applicable subsection, service need only be addressed to the corporation.
II.
As under common law, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice. Koster v. (American) Lumbermens Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); Brown v. Brown, [ 195 Conn. 98, 108-09 and n. 17, 486 A.2d 1116 (1985)]. Union Carbide Corporation v. Aetna Casualty Surety Co., 212 Conn. 311, 319, 562 A.2d 15 (1989)."
The central principle of the forum non conveniens doctrine has been stated to be unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Gulf Oil Corporation v. Gilbert, supra, 508; Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981)." Picketts v. International Playtex, Inc., supra, 215 Conn. 500-01. The defendants bear the burden of persuasion that the chosen forum is inconvenient to potential witnesses for the defense. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43-44 (3d Cir. 1988). When a dismissal is premised on the convenience of witnesses, more than a mere allegation to that effect is required. Piper Aircraft Co. v. Reyno, supra, 259 and n. 27. Rather, the defendants must establish, with specificity, inconvenience to witnesses that is sufficiently prejudicial to justify dismissal. Mowrey v. Johnson Johnson, 524 F.Sup. 771, 775 (W.D. Pa. 1981). A party seeking to transfer a case for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover. Jenkins v. Wilson Freight Forwarding Co., 104 F.Sup. 422, 424 (S.D.N.Y. 1952). The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony. National Super Spuds v. New York Mercantile Exchange, 425 F.Sup. 665, 668 (S.D.N.Y. 1977). Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material. Alcoa Steamship Co. v. M/V Nordic Regent, 654 F.2d 147, 167 (Van Graafeiland, J., dissenting), rev'd on rehearing, 169 (2d Cir. 1981). The mere assertion that such evidence is irretrievably located in Canada is, therefore, not adequate to tip the scales in the defendants' favor on a motion to dismiss for forum non conveniens. See Carlenstolpe v. Merck Co., supra, 907.
In Picketts v. International Playtex, Inc., 215 Conn. 490 (1990), the plaintiff brought an action in Connecticut to recover damages for his wife's death from toxic shock syndrome, which allegedly was caused by the defendants' defectively designed tampon. The defendants moved for dismissal on the grounds that Connecticut was an inconvenient forum in light of the fact that the defendant planned to call numerous witnesses from Canada. Defendants submitted only one affidavit of one physician from Canada, whom the defendants indicated they planned to call to testify, but that doctor stated in his affidavit that he could not even conclusively determine that the defendants' product was the cause of death. The defendants in Picketts did not present affidavits from any other witnesses including the attending physicians in Canada, where the decedent was treated unsuccessfully for toxic shock syndrome, to show that they were unavailable to testify in Connecticut. Conn. 510-11. The Supreme Court held that the trial court abused its discretion in granting the defendant's motion to dismiss.
In the present case, the burden was on the defendants to demonstrate that as a forum, Connecticut was inconvenient, in light of the witnesses that the defendants planned to call to testify, but defendants failed to list a single witness that they would call from out of state. The defendants argued that the insurance claim dispute would likely be resolved by an appraisal proceeding and that the defendants "anticipated" that the appraiser would be from Louisiana. The defendants assertions are far too speculative under the Picketts standard to prevail on forum non conveniens.
Motion to dismiss denied.